Battle v. NC Dept. of Public Safety - Prisons et al

Filing 94

ORDER: 1) Defendant William Jones' 49 Motion to Dismiss is GRANTED. 2) Defendant Gary Sobel's 71 Motion to Dismiss is GRANTED. 3) Defendant Keith D'Amico's 64 Motion for Summary Judgment is GRANTE D. 4) Plaintiff's 42 "Letter of Declaration," is construed as a Motion for Preliminary Injunction and is DENIED. 5) Plaintiff's 86 "Summons," is construed as a Motion to Compel Discovery and is DENIED. 6) Plainti ff's 70 Motion to Amend Complaint Adding Defendants is DENIED. 7) Plaintiff's 76 , 93 Motions for the Appointment of Counsel are DENIED. 8) Plaintiff's 86 Motion to Compel Discovery is DENIED. 9) The Clerk of Court is instructed to terminate this action as to Defendants Jones, Sobel, and D'Amico. Signed by Chief Judge Frank D. Whitney on 6/6/2019. (Pro se litigant served by US Mail.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-174-FDW
KENNETH ANTHONY BATTLE,

)
)
Plaintiff,
)
)
vs.
)
)
N.C. DEPARTMENT OF PUBLIC SAFETY – )
PRISONS, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER comes before the Court on pro se Plaintiff’s “Letter of Declaration,”
(Doc. No. 42), Motion to Amend Complaint Adding Defendants, (Doc. No. 70), Motions for the
Appointment of Counsel, (Doc. Nos. 76, 93), and Motion to Compel Discovery, (Doc. No. 86),
and on Defendant William Jones’ Motion to Dismiss, (Doc. No. 49), Defendant Keith D’Amico’s
Motion for Summary Judgment, (Doc. No. 64), and Plaintiff’s Defendant Gary Sobel’s Motion to
Dismiss, (Doc. No. 71).
I.

BACKGROUND

Plaintiff filed a pro se Amended Complaint, (Doc. No. 14), pursuant to 42 U.S.C. § 1983
that passed initial review on his claims against Defendants Bailey, Bell, Clark, Coble, Crisp,
D’Amico, Geouge, Hall, Hensley, Jones, Litaker, Porshia, Quintero, Swink, Tate, Taylor,
Thompson, and Waltz for deliberate indifference to a serious medical need; against Defendants
Bailey, Geouge, Hensley, and Porshia for retaliation; and against supervisory Defendants
Anderson, Beaver, Chapman, Glick, Penland, Pittman, Taylor, and Watson for failing to stop their
subordinates’ misconduct. (Doc. No. 32).
1

(1)

Amended Complaint1 (Doc. No. 14)
Construing the Amended Compliant liberally and accepting the allegations as true, Plaintiff

has suffered from a severe latex allergy since 2014, for which he had a medical “490” card when
he arrived at Alexander C.I. (Doc. No. 14 at 15). The allergy precludes Plaintiff from using the
plastic/nylon mats or pillows that prisons provide for bedding. Plaintiff has had a doctor’s order
for cloth-only mattresses and pillows since 2014. Using plastic/nylon mats and pillows causes skin
reactions including severe pain, redness, bruising, itching, irritation, cracking, and peeling with
sores. His allegations cover incidents that allegedly occurred at Alexander C.I., Avery-Mitchell
C.I., and Albemarle C.I.
Plaintiff alleges that, at Avery-Mitchell C.I. in November 2015, Defendant D’Amico
ordered a patch test in which a piece of latex was taped to Plaintiff’s left arm despite Plaintiff’s
prior diagnosis with a latex allergy in an attempt to test the allergy for himself, which he is not
qualified to do. The latex remained on Plaintiff’s skin for hours which eventually caused Plaintiff
to call a medical emergency due to pain, injury, and scarring.
At Albemarle C.I. on November 24, 2016, Defendant Coble touched Plaintiff’s stomach
while wearing latex gloves despite knowing about Plaintiff’s severe latex allergy. His actions
caused Plaintiff to have a severe skin reaction on his stomach are of pain, redness, and bruising.
At Alexander C.I., Defendant Jones ignored Plaintiff’s prior diagnosis of a latex allergy
and the need for cloth mattresses and pillows. He stopped “all treatment and precautions” that were
previously prescribed by other physicians. (Doc. No. 14 at 17). On May 30, 2018, Plaintiff had an
appointment with Defendant Jones where he reviewed the dermatology reports confirming his
latex allergy, Plaintiff’s medical notes, and a “490” showing that Plaintiff needs cloth mattresses

1

Only the allegations against the Defendant Jones, Sobel, and D’Amico are included in this section.

2

and pillows. Defendant Jones renewed Plaintiff’s “490” for cloth mattresses and pillows. However,
later that evening, a nurse informed Plaintiff that Jones changed the “490” at the request of
Defendants Hall and Bell, and removed all information about Plaintiff’s latex allergy from his
medical “490.”
As injury, Plaintiff alleges that, when he is touched during searches with latex gloves that
have caused severe skin reactions with pain, redness, bruising, itching, cracking, and peeling with
sores. This also happens when he is made to sleep on plastic/nylon mattresses and pillows. He
then states verbatim “Given triamcinolone acetonide ointment USP, 0.1%, I require cloth
mattresses and pillows to use as bedding, however Alexander C.I. has refused to order them for
me.” (Doc. No. 14 at 14).
Plaintiff requests emergency injunctive relief, compensatory damages, punitive damages,
and any additional relief the Court deems just, proper, and equitable.
(2)

Defendant William Jones, M.D.
(A)

Motion to Dismiss (Doc. No. 49)

Defendant Jones argues that Plaintiff’s claims against him should be dismissed pursuant to
Rule 12(b) of the Federal Rules of Civil Procedure because Plaintiff failed to exhaust his available
administrative remedies prior to bringing this action as required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a).
Defendant Jones argues that Plaintiff filed the original Complaint on June 21, 2017 and
failed to name Defendant Jones as a Defendant. The Amended Complaint was filed on June 26,
2018 and included a claim against Defendant Jones. The allegations against Defendant Jones stem
from one interaction with Plaintiff on May 30, 2018 at Alexander C.I. None of the exhausted
grievances, which involve issues that occurred in 2015 and 2016 at Avery-Mitchell C.I. and
3

Albemarle C.I. provided notice to Defendant Jones or NCDPS about the basis of the lawsuit or
allegations against him. Plaintiff has only submitted one Unit Grievance from Alexander C.I.
which was submitted after Plaintiff filed his Complaint and it makes no reference to a claim against
Defendant Jones. Plaintiff’s exhaustion of three grievances before filing this suit establish that the
administrative remedy procedure was available to Plaintiff and that he was not thwarted from using
the administrative remedy procedure.
(B)

Roseboro Order (Doc. No. 58)

The Court notified Plaintiff of the applicable legal standards, his burden to respond to
Defendants’ Motion, and the consequences of failing to do so.
(C)

Plaintiff’s Responses (Doc. Nos. 62, 82)

Plaintiff argues that he properly exhausted the available administrative remedies with
regards to his claims against Defendant Jones. He claims that he exhausted Grievance Number
07438, with Step 1 being received on May 31, 2018, Step 2 being received on May 31, 2018, and
Step 3 being received on June 26, 2018, which completed all available appeals and satisfies the
PLRA.
(D)

Defendant Jones’ Replies (Doc. Nos. 63, 83)

Assuming that Plaintiff exhausted Grievance Number 07438 through Step 3 of the
administrative remedy process, Grievance Number 07438 does not reference any alleged
wrongdoing by Defendant Jones and, in any event, Step 3 was not completed until July 11, 2018,
which is after Plaintiff filed the Complaint and Amended Complaint in this case. This case should
therefore be dismissed as to Defendant Jones.
(3)

Defendant Keith D’Amico
(A)

Motion for Summary Judgment (Doc. No. 64)
4

Defendant D’Amico argues that he should be granted summary judgment because the
pleadings and evidence show that he was not deliberately indifferent to Plaintiff’s serious medical
needs because he did not act with a culpable state of mind or proximately cause injury to Plaintiff;
he is entitled to qualified immunity because his actions were reasonable; the Eleventh Amendment
bars Plaintiff’s claims for compensatory and punitive damages against Defendant D’Amico in his
official capacity; Plaintiff’s allegations do not support an award of punitive damages against
Defendant D’Amico; and Plaintiff’s Amended Complaint fails to comply with Rule 9(j) of the
North Carolina Rules of Civil Procedure.
(B)

Roseboro Order (Doc. No. 67)

The Court notified Plaintiff of the applicable legal standards, his burden to respond to
Defendants’ Motion, and the consequences of failing to do so.
(C)

Response (Doc. No. 82)

Plaintiff argues that Defendant D’Amico conducted a latex allergy patch test on Plaintiff
which he was not qualified to carry out, rather than referring Plaintiff to a dermatologist. He claims
that, by taping latex to Plaintiff’s skin for hours and ignoring his plight, he required Plaintiff to
declare a medical emergency and caused him pain, injury, and scarring. He claims that Defendant
D’Amico also discontinued medication (triamcinolone acet 0.1%) that had been prescribed by Dr.
Umsei and P.A. Hendricks on November 18, 2015 prior to Plaintiff’s arrival at Avery-Mitchell
C.I. without Plaintiff’s knowledge. On November 18, 2015, P.A. Katherine Caggiano concluded
that Plaintiff was likely allergic to latex and that he should not come into direct contact with it.
Defendant D’Amico admits that he was aware of Plaintiff’s allergic reaction to latex and had no
reason to order a patch test when a dermatology consultation had been requested due to the
likelihood of injury to Plaintiff when he comes into contact with latex. Plaintiff has demonstrated
5

that genuine disputes of material fact exist and that Defendant D’Amico is not entitled to qualified
immunity and his claims support compensatory and punitive damages. Rule 9(j) of the North
Carolina Rules does not apply to this Eighth Amendment claim of deliberate indifference.
(D)

Defendant D’Amico’s Reply (Doc. No. 84)

Neither the Amended Complaint nor Plaintiff’s Response provide any basis to conclude
that Defendant D’Amico was deliberately indifferent to a serious medical need of Plaintiff’s.
While Plaintiff alleges that Defendant D’Amico disregarded Plaintiff’s prior latex allergy
diagnosis, Plaintiff did not have a latex allergy when he saw Defendant D’Amico in November
2015; his latex allergy test was negative on August 10, 2015 and there was no positive test result
for a latex allergy in his medical chart. Plaintiff also had a negative reaction to the patch test that
Defendant D’Amico ordered on November 4, 2015 and was performed by nurses on November 9,
2015, and Dr. Jones concluded that Plaintiff was not allergic to latex. Therefore, there is no basis
to conclude that Defendant D’Amico knew of and intentionally disregarded a serious medical
need. Further, Defendant D’Amico specifically ordered that Plaintiff remove the patch test if
irritation began and therefore did not ignore Plaintiff’s condition during the patch test. To the
extent that Plaintiff expresses disagreement with Defendant D’Amico’s medical decisions and
treatments, his disagreement with the course of care is not actionable and Plaintiff has failed to
provide the required expert certification to proceed on a claim of medical negligence pursuant to
Rule 9(j). Plaintiff has failed to include substantive arguments to address Defendant D’Amico’s
assertions of qualified immunity, Eleventh Amendment bar, and lack of support for punitive
damages.
(4)

Defendant Gary Sobel, D.O.2

2

Defendant Sobel is referred to in the Amended Complaint as “Dr. Coble.”

6

(A)

Motion to Dismiss (Doc. No. 71)

Defendant Sobel argues that the claims against him should be dismissed because Plaintiff
fails to state a claim, failed to comply with Rule 9(j) of the North Carolina Rules of Civil
Procedure, and failed to exhaust the available administrative remedies.
With regards to exhaustion, Defendant Sobel argues that the three grievances that Plaintiff
exhausted do not involve Plaintiff’s claim against Defendant Sobel for the care he provided on
November 24, 2016. Of the six additional grievances Plaintiff filed, one of them does refer to
Defendant Sobel’s care but it was not exhausted through the entire appeal process.
The allegations against Defendant Sobel fail to state a claim upon which relief can be
granted because the only allegations are that Defendant Sobel examined Plaintiff while wearing
latex gloves on November 24, 2016. Plaintiff fails to adequately allege that Defendant Sobel knew
about the latex allergy or that any such allergy existed. At most, Plaintiff claims medical
negligence but Plaintiff failed to comply with Rule 9(j) by providing a proper expert certification.
(B)

Roseboro Order (Doc. No. 73)

The Court notified Plaintiff of the applicable legal standards, his burden to respond to
Defendants’ Motion, and the consequences of failing to do so.
(C)

Response (Doc. No. 79)

Plaintiff alleges that Defendant Sobel “misus[ed] his power and judgment” by touching
Plaintiff’s stomach area while wearing latex gloves, “knowing that [Plaintiff] had a severe allergy
to latex.” (Doc. No. 49 at 4). Defendant Sobel’s actions caused Plaintiff to have severe skin
reactions that required medication to help stop the pain, redness, and bruising. Defendant Sobel
ignored Plaintiff’s plight about the severity of the allergy, including disregarding Plaintiff’s prior
diagnoses and treatment of the latex allergy that exposed him to an unreasonable risk of serious
7

harm. Defendant Sobel is not entitled to qualified immunity and the claims against him are not
barred by the statute of limitations. Punitive damages area available because Defendant Sobel
refused to err on the side of caution and wore latex gloves while examining Plaintiff while Plaintiff
lay on the examination table with his eyes closed and in pain. Plaintiff was at imminent risk of
serious and irreparable harm and Defendant Sobel knew he was doing something dangerous that
was likely to hurt Plaintiff. Defendant Sobel and Plaintiff had previously discussed Plaintiff’s
severe latex allergy. This qualifies for punitive damages. Defendant Sobel ignored well-qualified
doctors who chose to err on the side of caution and follow he recommendations that they had made,
and instead chose to touch Plaintiff’s stomach with gloves on before Plaintiff recognized the
danger.
(D)

Defendant Sobel’s Reply (Doc. No. 80)

Plaintiff’s allegations do not indicate that Defendant Sobel acted with deliberate
indifference and it is questionable whether Plaintiff even had a latex allergy. Plaintiff’s Response
characterizes his claim as one of medical malpractice, which subjects this case to dismissal for
failure to comply with Rule 9(j). Plaintiff has also failed to plausibly allege that he exhausted his
administrative remedies.
(5)

Evidence3
(A)

Affidavit of Keith D’Amico, PA (Doc. No. 65)

Defendant D’Amico is a licensed Physician’s Assistant. He was contracted to provide care
as a PA at Avery-Mitchell C.I. during the relevant times and he had no involvement with Plaintiff
while Plaintiff was housed at any other institutions. D’Amico reviewed Plaintiff’s medical records
and has personal knowledge of Plaintiff’s case.

3

This section is not exhaustive.

8

If an inmate wants an appointment in a medical clinic without a regularly-scheduled
follow-up appointment, he must submit a Sick Call Appointment Request containing his
complaints. The Sick Call Appointment Request is reviewed by a triage nurse who reviews the
complaints, triages them, and schedules an appointment with a nurse. At the Sick Call
Appointment, the nurse assesses the inmate and records his complaints as well as the nurse’s
observations, assessments, and plans. The nurse determines at the appointment whether the inmate
or his chart is to be seen by another healthcare provider and makes such referrals, if necessary. An
inmate is not scheduled for an appointment with the physician or a mid-level provider such as a
PA unless he is referred by the nurse. The inmate’s chart is not submitted for review unless the
nurse refers the chart for review by the physician or a mid-level provider such as a PA. Generally,
inmates not seen or examined by NCDPS physicians or mid-level providers in the absence of
objective findings documented by the nursing staff that relate to the inmate’s subjective complaints
in the Sick Call Appointment Request.
On April 14, 2015, Plaintiff complained that he broke out in an itchy rash whenever he
wore latex gloves. A Radioallergosorbent (“RAST”) test was performed on April 18, 2015.
Plaintiff tested negative to a latex allergy and was informed of the results on April 21, 2015.
On August 10, 2015, Plaintiff presented to Dr. Joseph Umesi with a rash that allegedly
started on his hands after exposure to latex. Dr. Umesi noted Plaintiff’s negative BAST result but,
out of an abundance of caution, he ordered Plaintiff non-latex shower shoes, permission to stand
on blue chunks pads while showering, and use non-latex gloves. Dr. Umesi submitted a Utilization
Board (“UR”) Request for a dermatologist on August 31, 2015 due to isolated large papules on
Plaintiff’s neck, chest, and back that were unresponsive to topical steroids and antihistamines.
On October 12, 2015, D’Amico conducted a routine review of Plaintiff’s chart for
9

medication renewal and medical duty status. D’Amico renewed Plaintiff’s non-latex status and
ordered a cloth mattress, extra socks, non-latex shoes, and blue chunks to stand on while
showering. On October 13, 2015, D’Amico submitted a rush UR Request for non-latex shower
shoes for Plaintiff.
On November 4, 2015, D’Amico saw Plaintiff in connection with a nurse’s referral from
an October 27, 2015 Sick Call Appointment, during which Plaintiff complained about his
Clobetasol cream he was using for a rash and requested something else for his skin condition.
According to Plaintiff, nothing that medical had in stock could help him and he requested to see a
provider.
D’Amico reviewed Plaintiff’s chart on November 4, 2015 and noted that the UR request
for non-latex shower shoes was denied because of the negative RAST test result. Concerned that
irritation was going to be a continued problem for Plaintiff for the duration of his sentence,
D’Amico ordered a patch test “to verify his latex sensitivity.” (Doc. No. 65 at 4). D’Amico’s
instructions to the nurse was: “cut a 3mm square piece of latex glove – measure, don’t guess. Tape
to forearm. Place in holding for the first 30m (minutes) after placement and recheck. If without
reaction, evaluate 24 hours later. Instruct patient to remove if irritation starts before.” (Doc. No.
65 at 4).
The latex sensitivity test was performed on Plaintiff on November 9, 2015. The Nurse taped
a 3mm square of latex to Plaintiff’s left forearm and he was monitored for a reaction. Krystal D.
Kanipe, LPN, noted that there was no reaction 30 minutes after placement of the latex. Ellen D.
Hayes, RN then charted “surrounding skin normal including areas that silk tape touched. Two
areas resembling the shape of nail marks with the largest being towards outer aspect and next nail
inward. Tape securing area is visibly loose to accommodate such action. Patient admits he has
10

rubbed the area. No swelling or elevation of skin patch area noted. Mr. D’Amico consulted and
confirms this is not a true reaction.” (Doc. No. 65 at 4).
D’Amico then consulted Plaintiff about his negative RAST test and signs of negative
reaction to the patch test. D’Amico explained to Plaintiff that, due to the negative test results, he
most likely did not have a latex allergy. Rather, D’Amico believed that it was possible he had an
allergy to one of the other materials used in the shower shoes. D’Amico advised Plaintiff that the
plan of care was for him to wear shower shoes for one minute starting that night and then double
the time worn daily as he increasingly tolerated the material.
D’Amico conducted a routine chart review on November 18, 2015. He noted that the UR
Board had approved the referral to a dermatologist and D’Amico ordered that an appointment be
set.
On November 24, 2015, Plaintiff was seen by Katherine Caggiano, PA at Boone
Dermatology Clinic. Caggiano recommended that Plaintiff avoid latex completely. She did not
review or comment on the negative RAST test. The same day, D’Amico reviewed Caggiano’s note
and placed another UR Request for non-latex shoes for Plaintiff. D’Amico told the UR Board that
Plaintiff needed protection in the shower due to multiple skin break downs on his feed and told
them to ignore the prior negative latex test. He reiterated that his request for non-latex shower
shoes had been previously denied and that immediate response was required.
On February 5, 2016, D’Amico reviewed Plaintiff’s chart. Based on the review, D’Amico
entered renewal orders for a non-latex cloth mattress, use of non-latex gloves, permission to use
extra socks to wear while showering, and issuance of a special shower shoe through the end of his
sentence.
During his treatment of Plaintiff, D’Amico conducted chart reviews and physical
11

examinations, ordered and renewed his prescriptions, ordered and reviewed diagnostic tests and
other treatment modalities when Plaintiff’s various medical conditions required it, and referred
him to physicians when necessary. Plaintiff’s RAST test for an allergy to latex was negative in
April 2015. Due to the negative test, the pharmacy denied the request for non-latex shower shoes.
Due to Plaintiff’s continued complaints of irritation, D’Amico re-tested Plaintiff’s latex sensitivity
with a monitored patch test in October 2015, which also came back negative. The next month,
Plaintiff was referred to and seen by a dermatologist who suggested avoidance of latex. That same
day, D’Amico promptly submitted a UR Request for non-latex shower shoes based on the
dermatologist’s recommendations and instructed the pharmacy to ignore prior negative latex
allergy results.
At no time did D’Amico disregard the symptoms and/or concerns that Plaintiff presented.
He took appropriate action and made professional decisions and treatment recommendations/
referrals based on Plaintiff’s complaints and test results. D’Amico’s clinical decisions were not
made for the purpose of causing harm or injury to Plaintiff. D’Amico did not ignore Plaintiff’s
medical needs or deny him any necessary treatment or diagnoses for his latex allergy. D’Amico
attentively ordered another allergy test to confirm Plaintiff’s belief that he was allergic to latex
despite the negative RAST test. D’Amico denies Plaintiff’s allegations about D’Amico’s care and
treatment and denies that he was deliberately indifferent to Plaintiff’s alleged latex allergy.
Based on his education, training and experience as a PA, D’Amico is qualified to order an
allergy test including a patch test and diagnose a latex allergy. (Doc. No. 65 at 7).
(B)
4/14/15

Medical Records
Clinical Encounter (PA Hendricks); Plaintiff complains of itchy rash
whenever he wears latex gloves, says he thinks he is allergic to latex; RAST
test ordered (Doc. No. 65-2 at 2)
12

4/16/15

NCDPS Allergy Form Lab negative for latex allergy (Doc. No. 65-2 at 7)

8/10/15

Clinical Encounter (Dr. Umesi); Plaintiff presents with rash that started on
his hands after exposure to latex; PA Hendricks gave a 490 form for nonlatex gloves; RAST was negative but he breaks out each time he touches
latex; rash is up his arms, chest and back; new medication orders for rash;
follow up at Sick Call as needed (Doc. No. 65-3 at 2)

8/31/15

Consultation/Referral Form (Dr. Umsei); appointment at Boone
Dermatology 11/24/15 for papules on neck, chest and back that are not
responsive to topical steroids and antihistamines (Doc. No. 65-3 at 5)
UR Request dermatology consultation approved (Doc. No. 65-3 at 6)

10/12/15

Medical Duty Status (PA D’Amico); no latex mattress, cloth only; allow
Plaintiff to use non-latex gloves due to latex allergy until EOS; Plaintiff has
latex allergy, causing severe skin reactions, cannot wear state-provided
shower shoes for any length of time; may have extra socks for showering;
may have blue chunks to stand on while showering (Doc. No. 65-4 at 2)

10/13/15

UR Request (PA D’Amico) non-latex shower shoes; Plaintiff has severe
latex allergy; ignore RAST test (Doc. No. 65-4 at 3)

10/27/15

Clinical Encounter (RN Hughes); Plaintiff requests a different allergy
cream; appointment scheduled on 11/2/15 with “Physician Extender” and
chart review with physician; cosign/ review by D’Amico (Doc. No. 65-5 at
2)

11/4/15

Clinical Encounter – Administrative Note (PA D’Amico); pharmacy states
they could not source a latex free shower shoe; Plaintiff’s latex lgE is
negative; will verify latex sensitivity as this will be a concern for the
duration of his sentence
Nursing Instructions: “Cut a 3mm square piece of latex glove, measure,
don’t guess. Tape to forearm. Place in holding for the first 30 minutes after
placement and recheck. If without reaction, evaluate 24 hours later. Instruct
patient to remove if irritation starts before.” (Doc. No. 65-6 at 2)

11/9/15

Clinical Encounter (RN Hayes); Plaintiff says “I am feeling itchy and my
skin is burning and stinging. I have tried not to scratch it. I have rubbed it
through the bandage.” Surrounding skin normal, two areas resemble the
shape of a nail, no swelling or elevation of skin patch area noted; “Mr.
Damico consulted and confirms this is not a true reaction.” Follow-up at
sick call as needed, return immediately if condition worsens, discharged to
housing unit. “Counseled by Mr. Damico about negative rast and signs of
negative reaction. Advised for plan of care to wear shower shoes for one
13

minute starting tonight and double time daily. Provider expressed that it not
a latex allergy but rather a possible material allergy that is used in making
of shower shoes causing irritation.” (Doc. No. 65-7 at 2)
Clinical Encounter (LPN Kanipe); 30 mins after placement of 3mm latex
piece to left forearm, no reaction noted at this time. “pt c/o itching at latex
site;” “Latex allergy response;” “redness noted to area that piece has
touched. No edema noted;” “rtc if breathing becomes difficult or area of
latex becomes intolerable” cosigned by D’Amico (Doc. No. 65-7 at 4)
11/18/15

Clinical Encounter – Administrative Note (MRA III Ledbetter) UR
approved and appointment scheduled for Boone Dermatology on 11/24/15
(Doc. No. 65-8 at 2)
Clinical Encounter – Administrative Note (PA D’Amico) patient has
symptoms of a latex allergy, lgE latex neg lab, has UR approval for derm
and POD, will get appts addressed today
New Medication Orders: Hydrocerin Cream, Simethicone
Discontinued Medication Orders: Triamcinolone Acet 0.1% (Doc. No. 658 at 3, 4)

11/24/15

Boone Dermatology Report (PA-C Katherine Ceggiano) Impression:
“Allergic contact dermatitis, likely to latex, with Id Reaction….” Plan:
“Avoid latex completely. Recommend that patient use non-latex shower
sandals and be searched with non-latex gloves in the future….;” Reviewed
by Dr. Uhren on 12/10/15 and PA D’Amico on 11/24/15 (Doc. No. 65-9 at
2).
Clinical Encounter – Administrative Note (PA D’Amico) Urgent UR
Request for non-latex shower shoe; Reason for Request: “Severe reaction
to Latex with residual scarring. Patient needs shower shoe non latex. He is
walking barefooted on the shower floor with open wound from prior
reaction to Latex Shower shoe. Have ordered before, Response is to order
from different place. Not acceptable. I diagnose, no knowledge of purchase
trails. Patient need foot protection today;” Provisional Diagnosis: “Severe
latex allergy.” (Doc. No. 65-9 at 7)
UR Summary request for shower shoes approved (Doc. No. 65-9 at 8)

1/26/16

Inmate Medication Refill Request Triamcinolone Acet. 0.1% cream;
Nursing Staff Response; “Current order expired, you will need to fill out a
sick call form if you need this medication continued;” Additional
comments: “Discontinued by provider 11/18/15” (Doc. No. 82 at 18)

2/5/16

Medical Duty Status (D’Amico) Chart review; Comments: “Allow the
14

offender to use non-latex gloves due to latex allergy until EOS. Inmate has
LATEX allergy, causing severe skin reactions. Cannot wear state provided
shower shoes any length of time. May have extra socks to wear while in the
shower. Issued special shower shoes, white mesh with rubber sole to EOS.”
(Doc. No. 65-10 at 2)
Clinical Encounter – Administrative Note (MD Broadwell) Conclusion:
“negative lgE to latex and a negative patch test, yet dermatology
recommends latex avoidance;” “please order new non-latex shower shoes”
(Doc. No. 65-9 at 10)

9/8/17

(C)
11/4/15

4

Grievances4
Administrative Remedy Procedure (4680-2105-YBA-00325) at AveryMitchell C.I.
Grievance Statement: “I’m sending this complaint, as an emergency and
confidential grievance; because of fear and well known retaliatory actions
that occur here at Avery-Mitchell Correctional Institution that goes
unattested, such as racial discrimination and harassment, by staff, willfully,
at this facility. I’ve been singled out because of my skin color and nothing
was said to the Caucasian inmates; concerning the same issue. I’m placed
in drastic situations daily, by being constantly surrounded by Caucasian
officers, which is very uncomfortable for me, especially since using the
administrative remedy process against an officer (Clark), officer (Porshia)
and captain (Pittman) for ‘acting tyrannical under the color of state law, and,
willfully endangering my life.’ Some of the officers in supervisory positions
are unapproachable and have formed in their minds that ‘all inmates are
liars’ as quoted by Captain (Pittman). So in conclusion, I will not receive an
adequate or truthful investigation, if conducted at this facility.
On Oct 25, 2015 at lunch time, for special diets; I looked through
the window and noticed all the inmates were wearing latex gloves on the
serving line, handling trays and serving food which is a clear violation of
policy.
I told the officer in charge of the serving line, and the inmates that
‘I have severe allergic reactions to latex.’ My plea went ignored in spite of
my health warning. I spoke to officer Porshia and explained the situation
and he arrogantly blew me off. I further explained how dangerous latex is
to my health, but officer Porshia continued to be willfully negligent and
indifferent to my health hazard. Officer Porshia kept asking me the same
question, ‘are you going to eat or what?’ I said ‘yes! But I can’t eat food
that’s been handled with latex.’ He, then called officers Clark and Hensley
to the area and I explained to them the same problem – latex allergy’s. The
officers began making unprofessional comments.
I then stated under duress that ‘I have a medical 490 about latex

The bolded grievances were exhausted before this lawsuit was filed.

15

allergys, that causes severe skin reactions.’ I pulled up my sleeves to show
the officer’s my skin starting to breakout, as well as my neck, and then
inside of my mouth. I told them ‘this latex allergy could kill me!’ Officer
Clark responded inhumanely ‘well after you die, fill out a grievance!’
These actions are deliberately indifferent, unwarranted, sadistic and
homicidal. Officer Clark’s openly loud comment shows reckless regard for
human life- or an inmate’s life, and his conduct is in direct violation of
N.C.G.S. § 148-11 … Code of Conduct, and Chp. F. 1605 Duties of
Correctional Officer’s, Section (e)… No inmate shall be unnecessarily
exposed to conditions which will endanger the health of the inmate.
Officer’s Clark and Porshia also exhibited ‘Deliberate Indifference’ … by
their actions which could have caused me injury by them not acting to my
valid medical complaint…. Deliberate indifference and willful neglect, by
a prison official.
I asked to speak to the captain on duty, Officer Clark kept telling me
‘I don’t need to speak with the Captain!’ And then, said ‘why do you want
to speak to the Captain?’ I told him, ‘because you’re not helping me.’ Then,
officer Clark told the officer to fix me another tray without latex gloves, but
I received the same contaminated tray with the meat changed. I went back
to get a cup and the officer slammed the cup down on the counter –
unprofessional behavior.
I asked Officer Clark and Porsha once again if I could speak to the
Captain, Officer Porshia replied ‘look dude, just sit down and eat.’ The
situation began to spiral out of control so I left, Officer Clark told me to
‘speak with the sergeant in the unit if I wanted to speak with the Captain.’
Thus returning to my unit, I spoke with Sergeant Woody in reference
to what had occurred. Sgt. Woody notified the duty lieutenant of the
situation in hopes of me being able to speak with the Captain. Sgt. Woody
told me ‘the lieutenant stated he would pass my complaint on to the Captain
and if they needed to speak with me, that, they will get with me.’
At dinner, same scenario … latex gloves being worn on the serving
line. I told the inmate on the serving line of my latex allergy. The inmate
was very apologetic, changed his gloves to the clear serving gloves, then
fixed my tray without any problems.
Captain Pittman, being in the dining hall during last meal, I
approached him, asking him if I could talk with him reference the incident
that took place during lunch. I then explained the entire scenario about the
latex gloves, and my allergy to them. I then told him of the sadistic comment
that Officer Clark had made. Captain Pittman stated ‘I can’t control what
the kitchen does.’ I then asked ‘well, what about the sadistic comment
Officer Clark made, telling me that after I die, to fill out a grievance, when
I told him that this latex allergy could kill me.’ Captain Pittman stated
‘Clark didn’t say that.’ After I repeated the sadistic comments made by
Officer Clark, Captain Pittman’s comment betrayed him. He knew from his
comment that Officer Clark made the derogatory statement! I pleaded with
16

Captain Pittman, that I wasn’t lying and I had other inmates who heard and
witnesses what was said. Capt. Pittman responded, ‘All inmates are lier’s,
and if my officer say he didn’t make those comments, then he didn’t make
them.’ Captain Pittman then told me to go away, ‘shooing me off, with his
hand.
Captain Pittman has clearly demonstrated willful ‘deliberate
indifference’ by his actions and comments. Cpt. Pittman’s conduct, as well,
was very unprofessional, in direct violation of N.C.G.S. § 148-11 code of
conduct, and chp. F.1605 … Duties of Correctional Officer’s, section (e) …
No inmate shall be unnecessarily exposed to conductions which will
endanger the health of the inmate. Cpt. Pittman also violated my 5 th
Amendment Rights of the U.S. Constitution’s due process clause, by
refusing to investigate the tyrannical behavior of Officer’s Clark and
Porshia concerning my allergic reaction to latex.
Capt. Pittman, Officer Porsha and Officer Clark also violated Chp.
A.0200 Conduct of Employees’, section (e.) Discrimination, harassment
and racial issues (1.) Employees will treat all inmates with equal dignity and
courtesy, (e.) Employees should be provided training in human relations so
that cultural barriers impeding effective communication between inmates’
and staff may be removed.
After this incident, I am worried and some-what frightful to be on
this camp, having to be around these officer’s whom are being addressed in
this grievance. I don’t fear … for my life, nor do I need protective custody.
However I do fear retaliation and/or reprisal. I will be placed in situations
where these officer’s may be supervising me, which could result into
retaliatory situations. If not reprisal from the noted officers. Surely it will
come from other staff on this camp.
I have already started receiving reprisal from staff, being told that
the only reason I am pushing this, and writing this grievance, is because I
don’t want to be here at this facility. Comments like that, plus knowing
there’s a lot of racism here at this facility, which makes me very uneasy and
concerning. This scares me to the point that I can’t function properly, as I
am very intimidated by the ethnic differences by staff at this facility. Again,
I don’t fear for my life at this time, but I do fear retaliation which
undoubtedly will happen as long as I’m housed at this camp!
I fear being setup or falsely accused of something I didn’t do. I fear
of being placed in segregation because of reprisal. I already know there will
be a target placed on my back. It is well known that inmates are sent to
Avery/Mitchell for punishment or retaliatory purposes, to be made an
example of. This facility bears the type of reputation of being cruel, over
bearign, controlling and degrading. With that said, and member’s of
supervisory staff making the comments ‘all inmate’s are liars’ as quoted by
Capt. Pittman, assures me I will not receive an adequate or comprehensive
investigation, if conducted by this facility.
On Oct. 31, 2015 at dinner time Officer Garland made a demeaning
17

comment about me, over the radio saying, ‘what, he afraid to get his hands
dirty.’ I have to wear non-latex gloves when I walk off the unit. I stated to
Officer Cooper, out of frustration, ‘she needs to mind her business.’ Officer
Cooper then got billigerant [sic] and pointed his finger in my face, raising
his voice to me, stating ‘you better watch your mouth.’ Officer Cooper
could literally be charged with assault and communicating a threat. His
conduct was unprofessional. This is another example of harassment and
reprisal due to my latex allergy.…
The officers’ had knowledge and proof of how dangerous my latex
allergy is to my life, because I told them and showed them the beginning
outbreaks on my skin, which was made into a comical situation by the
officer’s and they are in direct violation of N.C.G.S. § 148-19, Health
Services, by not seeking ‘Preventive’ measures to the problem.
I have also included ‘witness statement’s’ of several inmate’s whom
are willing to verify the validity of complaint or grievance. These inmate’s
were present when the incident took place.
There shall be no reprisals for the exercise of my Constitutional
Rights, being supported also by the Department of Public Safety’s Policy,
and my use of the Administrative Remedy Procedure as outlined by the First
Amendment…. Any reprisals will be met in a lawful format of prosecution
of any individual or individuals doing such.
There are federal laws that require people to be treated equally. i.e.:
The Civil Rights Act of (1964) and (1991), Rehabilitation Act of (1973),
Civil Rights Restoration Act of (1987) and Americans With Disabilities Act
of (1990).
The Department of Justice protects the rights of individuals confined
in institutions operated by a state or local governments. I believe that I have
been discriminated against, and plan to file a complaint with the, U.S.
Department of Justice; Civil Rights Division Criminal Section, Washington,
D.C.”
Requested Remedy: “To be transferred from this facility, from this region
and relocated back to the Raleigh regional area. For the officer involved to
face disciplinary and training in human relations/cultural barriers.” (Doc.
No. 5 at 75)
11/18/15

Letter from Taylor to Plaintiff re unprocessed grievance addressed to the
Director of Prisons (Doc. No. 5 at 73)

11/23/15

Screening Response (4680-2015-YBA-00325) by Mark Geouge; grievance
has been accepted (Doc. No. 5 at 74)

11/30/15

Step One Response (4680-2015-YBA-00325) by Mark Geouge; In response
to your grievance that was accepted on 11/23/15 in concerning the use of
latex gloves on the serving line and treatment you received from staff on
10/25/15, the following has been determined. Officer Clark states at no time
18

did he instruct you to write a grievance after you die, he stated that he
instructed you to write a grievance when you returned to the housing unit if
you felt the need. Officer Clark further reports that after you informed him
of your latex allergy, he informed kitchen staff who in turn had all inmates
on the serving line change to the clear gloves. Officer Clark also states that
when you requested to speak with the captain, he instructed you to request
this thru your unit sergeant. Officer Porshia states that inmate Battle
informed them that he was allergic to latex and that Officer Clark informed
the kitchen. Officer Porshia further states at no time did [sic] make any
unprofessional comments or act unprofessional towards inmate Battle.
Officer Hensley reports at no time did he make any unprofessional
comments around or towards you. Officer Hensley also states he did not
witness Officer Clark or Porshia say anything unprofessional to you. Capt.
Pittman states that he did speak to you concerning complaints about officers
Clark and inmates wearing latex gloves in the kitchen. Capt. Pittman
reported that the situation in the kitchen had already been resolved and
Officer Clark had already talked to him about the situation with inmate you
earlier in the day. Capt. Pittman also states if any kind of investigation or
counseling is done between him and his staff, you nor any other inmate is
privileged to the outcome of any investigation the [sic] has been conducted
once a complaint has been alleged. Capt. Pittman further reports he did not
state ‘all inmates are liars’ nor did he shoo you away. He did in fact tell you
to go back to the unit after he heard you out, because at the time he was in
the middle of the dining hall supervising the evening meal. Capt. Pittman
states at no time did he disrespect you. In response to the incident that
occurred on 10/31/15 concerning comments made by staff, the following
has been determined. Officer Garland states she observed you standing in
line for chow wearing blue gloves. She asked Officer Cooper over the radio
‘is there a reason that inmate has gloves on.’ Officer Garland reports at no
time was she demeaning on the radio. Officer Cooper states at no time did
he threaten or assault you. He did state that he informed you that you need
to watch your mouth after you made a comment that Officer Garland needed
to mind her business. It has been suggested that you contact your
programmer and follow the proper policy and procedure in submitting a
transfer request. (Doc. No. 5 at 91)
12/3/15

Step Two Response (4680-2105-YBA-00325) by Jason Penland; Step One
adequately addresses offender’s concerns. (Doc. No. 5 at 93)

12/10/15

Step Three Response (4680-2105-YBA-00325) by Jasmine Belyeu; no
violation of DOP policy or any evidence of disrespect or abuse of authority
by staff, grievance is dismissed for lack of supporting evidence (Doc. No. 5
at 94)

1/8/16

Administrative Remedy Procedure (4680-2016-YBB-00005) at Avery19

Mitchell C.I.; complaining about Geouge, Penland, Solomon, Reel, Clark,
Porshia and Hensley, Pittman, Watson, D’Amico, Taylor, Belyeu, and
Green (Doc. No. 5 at 3)
Screening Response (4680-2016-YBB-00005) by Emery Cornett;
grievance rejected; “More than one incident” re submitting witness
statements, staff indifference, violation of his 5 th Amendment rights,
harassment, retaliation, Step 3 Response, and grievance procedures (Doc.
No. 5 at 2)
Administrative Remedy Procedure (4680-2016-YAC-00014) at AveryMitchell
Grievance Statement: “The physician assistant Keith C. Damico, has
committed a violation of his ‘Hippocratic Oath’ by subjecting me to
unnecessary wanton infliction of pain, by his actions of taping latex to my
skin for hours – subjecting me to cruel and unusual punishment, and, for
basically ignoring my plight about the severity of my latex allergy. I had
already been diagnosed by Dr. Umesie and (PA) Hendricks, providers at
Harnett Correctional as having this severe ‘latex’ allergy. (PA) Keith C.
Damico basically ignored a doctor’s professional medical findings, thus
trying to prove an [sic] well qualified doctor wrong, at the cost of my life,
thus acting tyrannical under the color of state law, and, willfully
endangering my life.
It had already been established that I was allergic to latex because
of out-break I had just experienced, and the fact that the state provided
shower shoes, which contain latex, had taken all the skin off the bottom of
my feet and some toe-nails. All this clearly documented in my medical
chart and the medical 490 given to me.
On November 24, 2015, I was taken to Boone Dermatology in
Boone NC, where a dermatologist confirmed that I am allergic to latex and
not to come in direct contact with same. (PA) Damico has also failed to
follow the recommendations of the Dermatologist for the necessary
medications need to help repair my damaged skin. His actions are …
‘Deliberate Indifference,’ the reckless disregard, callous inattention to an
inmates needs, cruel and unusual punishment. The Eighth Amendment.”
Requested Remedy: blank (Doc. No. 5 at 96)
1/12/16

Screening Response (4680-2016-YAC-00014) by Mark Geouge, grievance
has been accepted (Doc. No. 5 at 95)

1/21/16

Step One Response (4680-2016-YAC-00014) by Mark Geouge; “In
response to the grievance that was accepted on 01/12/2016, the following
has been determined. Medical personnel state they have read all of the
documentation from Dr. Umesi and PA Hendricks going back before April
2015 when this first became an issue. At that time they did a laboratory test
20

for a latex allergy and the results came back negative (no allergy). Since
you have a history of suggesting you may be allergic to latex anyway they
chose to err on the side of caution and treat you as if you did, in fact, have
a latex allergy. The skin test ordered by Mr. D’Amico was a way of
confirming the allergy even though the original test was negative. And the
Dermatology Consult states you are “likely” allergic to latex. It was also
Mr. D’Amico who submitted an urgent UR requesting non-latex shower
shoes. And the medication recommended by the Dermatologist for your
skin rash, reviewed by Dr. Uhren, is the same medication – Triamcinolone
Cream – for which you already have a prescription that is valid through
03/12/16. Since you did not list a remedy which would resolve your
grievance medical has provided this information as a courtesy and as a way
of making you aware of facts you may not have already known.” (Doc. No.
5 at 98)
2/11/16

Step Three Response (4680-2016-YAC-00014) by Jasmine Belyeu; staff
responded appropriately; grievance is considered resolved; inmate is
encouraged to contact medical as needed (Doc. No. 5 at 99)

2/18/16

Administrative Remedy Procedure (4290-2015-YBA-01372) at Warren
C.I.; mentioning Geouge, Penland, Pittman, Solomon, Porshia, Hensley
(Doc. No. 5 at 17)

2/19/16

Screening Response (4290-2015-YBA-01372) by Sharon Pendergrass;
grievance is being rejected because: “More than one incident;” “Already
resolved;” and Plaintiff transferred from Avery Mitchell on 2/11/16 (Doc.
No. 5 at 16)

5/27/16

Administrative Remedy Procedure (4680-2016-WAB-02196) at Lumberton
C.I.; mentioning Sgt. Tate, Lt. Quintero re lack of cloth mattress (Doc. No.
5 at 70)

5/31/16

Administrative Remedy Procedure (4680-2016-WAB-02220) at Lumberton
C.I.; mentioning Sgt. Tate, Lt. Quinteo re lack of a cloth mattress (Doc. No.
5 at 67)
Screening Response (4680-2016-WAB-02196) by Mary Oxendine;
grievance is rejected due to “More than one incident.” (Doc. No. 5 at 69)

6/3/16

Screening Response (4680-2016-WAB-02220) by Mary Oxendine;
grievance is rejected due to “More than one incident.” (Doc. No. 5 at 66)

9/15/16

Administrative Remedy Procedure (4580-2016-TILRF-03446) at
Albemarle C.I.
Grievance Statement: “On June 28, 2016, I returned back to Avery-Mitchell
21

C.I. from having foot surgery. I was assigned to the Watauga Unit and
placed in dorm WAA-109 which is one of the bigger dorms. This dorm gave
me a lot of room between bunk and was suitable for my in my current
condition due to the fact that I was wearing two medical boots to help
protect my feet from injury, and aid me with walking as my feet attempted
to heal. This dorm allowed me space to move around without injuring
myself.
On July 3, 2016 I was moved without notice to dorm WBB-109
which is an much smaller dorm. I had barely any room at all to move around
or get in between the bunks which I was assigned, let alone I had to share
this small walk way with another inmate who had no regard for my
disability. Nor did staff take my disability into account what so ever when
they moved me, thus placing me at risk for reinjury to my toes. This
constitutes and shows that Sgt. Faye who moved my dorm location, who
knew before hand of my disabilities and impairments acted with ‘Deliberate
Indifference’ … by his actions which could have caused me injury by him
not acting to my valid medical complaint. I asked to speak with Sgt. Faye
about the move and he refused to talk to me. This also [is] … ‘Deliberate
Indifference,’ the reckless disregard, callous inattention to inmates needs;
Cruel and unusual punishment.
I continued to seek out for help to be moved after I struck my foot
on the bunk while attempting to get between the bunks. This injury and the
constant walking and standing prompted medical to put me in a wheelchair.
Again, I repeatedly pleaded with the supervisor’s of the Wautaga Unit to
move me to one of the bigger dorms where I could have more room to move
around and not get hurt. However my plights for help went unanswered and
ignored.
Being now that I was in a wheelchair and even medically disabled,
the facility heads or unit management may not act with deliberate
indifference to the needs of inmates who have serious handicaps or
disabilities under the Americans With Disabilities Act (ADA)…. This is
essentially the same protections as the Rehabilitation Act….
Inmates with disabilities are entitled to reasonable accommodations
that will enable them to access the facility to include making a dwelling or
in this case, the dorm(s), and sleeping area, accessible for disabled inmates,
or to provide reasonable accommodations for equal opportunity to enjoy the
dwelling.
I continued to ask Sgt. Faye who initially moved me from the star,
Sgt. Browning and Sgt. Rockwell. All these supervisor’s discriminated
against me and my disability by refusing to relocate me to a more accessible
dorm with space and room to enter the dorm, and move around, without
getting hurt by the bunks, chairs or other inmates. Also, by being confined
to a wheelchair, I was unable to maneuver my way through the dorm, nor
store my wheelchair in a safe location. So, again, I repeatedly asked to be
moved to one of the bigger dorms or one of the bunks located by the stairs
22

in the dorm, but still my plight was ignored.
On July 9, 2016, I went to Sgt. Rockwell and asked him ‘if he could
move me to a different dorm because of my feet situation and for the fact of
being in a wheelchair, and I had no room to move around.’ I further
explained to him that ‘the inmate whom I shared the vary narrow walkway
with between the bunk has no respect for my injured feet and has nearly
stepped on them several times.’ I then told Sgt. Rockwell that ‘I have hurt
my Right foot already by hitting my foot on the leg of the bunk, and that
I’m scared of being injured further.’ Sgt. Rockwell then made an attempt to
move me to another dorm, and told me ‘to go and pack my things.’ Shortly
thereafter, Sgt. Rockwell recended telling me ‘that I wouldn’t be moving,
to go back to the dorm I came from.’ I then asked Sgt. Rockwell ‘why he
changed his mind?’ Sgt. Rockwell responded stating ‘that he had called Sgt.
Frye at home, and asked him why he had moved me from my previous
dorm?’ Sgt. Rockwell said that ‘Sgt. Frye told him that I was moved because
he was told that I was with a group of other inmates being loud, disruptive
and fighting over the phone, therefore he was told not to move me.’
I just sat there in my wheelchair in total disbelief. I told Sgt.
Rockwell ‘that what Sgt. Frye had told him was far from the truth. That I
hardly got off my bunk because of my foot pain and swelling.’ I further told
Sgt. Rockwell that ‘I had only used the phone twice since being in the dorm,
and have never argued or fought over the phone at all, nor was I ever loud
or disruptive in the dorm, never!’ I asked Sgt. Rockwell if he could go back
and review the camera footage of the dorm, then ask other inmate’s in the
dorm of these false allegations, then and only then would he see that I was
lied on!’ Sgt. Rockwell refused stating ‘that I need to talk with Sgt. Frye
when he returns on Friday.’ The last thing I said to Sgt. Rockwell before I
went back to the dorm was ‘I can’t believe that you guys as supervisor’s,
would place my safety in danger, where I can be injuried and unable to move
around over a lie! A lie that was not properly investigated, because if it had
been, it would have shown that the allegations made were false.
What Sgt. Frye or Ms. Hudgins did was to take another inmate or
informant’s word at face value without doing a proper investigation
themselves. Sgt. Frye or whom ever he received this false information did
was to violate my rights under Due process clause of the Fourteenth
Amendment. It prohibits a state from depriving ‘any person of life, liberty
or property without due process of law.’ This move created a hardship for
me and caused supervisor’s and others to treat me very differently than the
way most prisoners are treated with disabilities…. I was given no chance to
refute this false information. No truth was established from the person(s)
who gave this information….. Reliability not established by reliance on
hearsay evidence without established basis because due process requires
hearing official to make independent totality-of-circumstances assessment
of informant’s reliability. Dorm camera’s as witness….
I then took it upon myself to write Ms. Hudgins; Assistant Unit
23

Manager currently over seeing Watauga Unit, as well as Mr. Hernandez;
Facility Administrator. I explained to them the situation hoping to get some
help and understanding from them. Instead all I received was more
retaliation from the Wautaga Unit Management and it’s officer’s.
On July 10, 2016 Sgt. Rockwell finally moved me to a different
dorm. After being in an altercation with another inmate over him nearly
coming down on my injured foot. All this which could have been avoided,
if I hadn’t been moved from the start based on misleading and untruthful
allegations, or moved to a dorm location with more accessibility from the
start. The management of Wautaga Unit placed me in a situation that could
have become violent with this inmate or other inmates, because of my trying
to protect my feet from further injury. These officials turned a blind eye to
the risk. They knew of my handicap and disabilities but failed to act, thus
violating my Eighth Amendment rights. Living conditions that are fine for
non-disabled inmates may be constitutionally inadequate for disabled
inmates….
Retaliation from my complaints and letter to Mr. Hernandez has
come in the form of rejection of grievances by Ms. Hudgins, sighting that I
already have an active grievance in process when I knew I didn’t. Ms.
Hudgins repeatedly refused to meet with me to discuss these incidents at
hand and the grievance problem.
On Friday July 22, 2016 I asked Officer Aldridge ‘if he could call
Ms. Hudgins and see if I speak with her’ and he said ‘No’! Officer Aldridge
then told me ‘to put in an request form.’ I responded telling him that ‘I had
done that already,’ he responded back by saying ‘no.’ I then asked if ‘I could
speak to the Sgt. on duty,’ and again Officer Aldridge said ‘no’! I then asked
‘why I couldn’t talk with the Sgt.’ and he responded saying ‘look we already
told that you were going to make a big deal out of this so just go away!’ I
then asked Officer Aldridge ‘who told him that,’ but he refused to answer.
It is apparent that I was unfairly being singled out for mistreatment by the
supervising management and some of it’s officer’s within the Wautaga
Unit. I was being treated differently than other prisoners and the treatment
is not rationally related to a legitimate governmental purpose. Again this
shows a pattern of retaliation within this unit as I have shown a chronology
of events from which retaliation may be inferred….
All the named officials have acted with Deliberate Indifference.
They knew before hand, and was repeatedly told of the substantial risk that
I faced in my condition, of serious harm and they disregarded that risk by
failing to take reasonable measures to abate it.”
Requested Remedy: “For the said officer’s and staff to be disciplined for
their unprofessional conduct.” (Doc. No. 5 at 43)
9/16/16

Screening Response (4580-2016-TILRF-03446) by Rebecca Broadway;
grievance accepted (Doc. No. 5 at 42)

24

10/3/16

Step One Response (4580-2016-TILRF-03446) at by Michael Thompson;
response is late so the grievance is being forwarded to Step 2 automatically;
inmate was moved to a bunk to accommodate him, there was no retaliation
(Doc. No. 5 at 63)

11/23/16

Step Two Response (4580-2016-TILRF-03446) by Donald Cleland; the
response at Step 1 appropriately addressed the concerns; staff indicate that
Plaintiff was moved to maintain order within the unit; inmates do not dictate
to staff where they are housed; there is no evidence to support the allegation
of retaliation; no further action is warranted (Doc. No. 5 at 64)

11/24/16

Administrative Remedy Procedure (4580-2016-TILRF-03988) at
Albemarle C.I.; mentioning Nurse Supervisor III, Nurse Litaker, Dr. Coble,
re medical department and administration ignoring his serious medical
need, i.e., severe latex allergy; requests a medical alert bracelet, epi-pen,
and top the use of latex gloves in the facility (Doc. No. 15 at 4)

11/28/16

Screening Response (4580-2016-TILRF-03988) by Samatha Shaver;
grievance accepted (Doc. No. 3 at 39)

12/1/16

Step Three Response (4580-2016-TILRF-03446) by Elizabeth Wallace; re
9/15/16 grievance filed at Albemarle C.I.; re unfair treatment when he asked
to be moved to another dorm and foot surgery; staff adequately addressed
the grievance concerns; facts found by staff investigator are adopted;
grievance is considered resolved (Doc. No. 5 at 65)

5/30/18

Administrative Remedy Procedure (4870-2018-B1A-07438) at Alexander
C.I. mentioning Nursing Supervisor Bell, unit management (Crisp and
Hall), and medical department; requesting cloth mattresses and pillows or
transfer to a minimum custody facility that will comply with the medical
orders (Doc. No. 15 at 24)

5/31/18

Screening Response (4870-2018-B1A-07438)
grievances is accepted (Doc. No. 15 at 23)

6/4/18

Letter from Plaintiff to Judie B. Clark complaining about Dr. Jones at
Alexander C.I. re 5/30/18 incident (Doc. No. 15 at 18)

6/11/18

Step One Response (4870-2018-B1A-07438) by Christopher Murray,
investigation shows that none of these issues is listed on the OPUS screen
and cannot be verified; custody cannot authorize these items as only nylon
mattresses are available for safety and security reasons; inmate refused a
single cell environment; no evidence of a latex allergy; no further action
recommended; inmate should follow up with medical as needed (Doc. No.
82 at 34)
25

by

Stephanie

Hall;

6/18/18

Step Two Response (4870-2018-B1A-07438) by Benjamin Anderson;
investigation shows no indication to support that staff have deliberately
denied inmate medically ordered items or accommodations; no further
action is required (Doc. No. 82 at 33)

7/11/18

Step Three Response (4870-2018-B1A-07438) by Angela Dellaripa;
finding no violation of applicable Prison policy, no evidence of staff
misconduct, and no evidence of staff deliberate indifference; review of
OPUS records indicates NO allergies noted to nylon or latex; the offender
is encouraged to continue to submit sick calls and attend medical
appointments to inform staff of any ongoing concerns or changes in his
medical condition; the grievance is dismissed as it has been resolved (Doc.
No. 82 at 35)

II.
(1)

LEGAL STANDARDS

Motion to Dismiss
A motion to dismiss under Rule 12(b)(6) determines only whether a claim is stated; “it

does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses,” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.1992). A claim is stated if the
complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). In evaluating whether a claim is stated, “[the] court accepts
all well-pled facts as true and construes these facts in the light most favorable to the plaintiff,” but
does not consider “legal conclusions, elements of a cause of action, and bare assertions devoid of
further factual enhancement.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250,
255 (4th Cir. 2009). Nor does a court accept as true “unwarranted inferences, unreasonable
conclusions, or arguments.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n. 26 (4th
Cir. 2009).
(2)

Summary Judgment
26

Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fec. R. Civ. P.
56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
fact is material only if it might affect the outcome of the suit under governing law. Id.
The movant has the “initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal citations omitted).
Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving
party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.
The nonmoving party may not rely upon mere allegations or denials of allegations in his pleadings
to defeat a motion for summary judgment. Id. at 324. The nonmoving party must present sufficient
evidence from which “a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818
(4th Cir. 1995).
When ruling on a summary judgment motion, a court must view the evidence and any
inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477
U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 557 U.S. 557, 586
(2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
(3)

Exhaustion
27

The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust his
administrative remedies before filing a section 1983 action. 42 U.S.C. § 1997e(a). The PLRA
provides, in pertinent part: “[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” Id.
The PLRA’s exhaustion requirement applies to all inmate suits about prison life. Porter v. Nussle,
534 U.S. 516 (2002). Exhaustion is mandatory. Id. at 524 (citation omitted); Jones v. Bock, 549
U.S. 199, 211 (2007). Exhaustion must take place before the commencement of the civil action in
order to further the efficient administration of justice. Id. A prisoner is not entitled to exhaust
administrative remedies during the pendency of an action. Cannon v. Washington, 418 F.3d 714,
719 (7th Cir. 2005); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). The PLRA requires
“proper” exhaustion, that is, “using all steps that the agency holds out, and doing so properly (so
that the agency addresses the issues on the merits).’” Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)).
“The level of detail necessary in a grievance to comply with the grievance procedures will
vary from system to system and claim to claim, but it is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. It is well settled
that a grievance does not have to mention a defendant by name so long as the grievance gives the
defendant fair notice of the claim. See Moore v. Bennette, 517 F.3d 717, 729 (4th Cir. 2008).
However, regardless of whether a particular defendant is named in a grievance, if the grievance
fails to give prison authorities fair notice of, and the opportunity to address, the problem that will
later form the basis of the suit against that defendant, dismissal of that defendant is appropriate.
See Davidson v. Davis, 2015 WL 996629 at *3 (W.D.N.C. Mar. 6, 2015) (citing Johnson v.
28

Johnson, 385 F.3d 503, 516-17 (5th Cir. 2004)).
NCDPS policy has a three-step administrative remedy procedure that requires an inmate to
complete all three steps.5 Each step of grievance review has a time limit during. NCDPS Policy &
Procedures .0307(f). A grievance may be rejected at any level if there has been a time lapse of
more than 90 days between the alleged event and submission of a grievance. NCDPS Policy &
Procedures .0306(c)(2). If an inmate does not receive a response within the time to do so at any
step, the absence of a response is deemed a denial which the inmate may then appeal. NCPS Policy
& Procedures .0307(f)(5).
(4)

Deliberate Indifference
“Prisoners alleging that they have been subjected to unconstitutional conditions of

confinement must satisfy the Supreme Court’s two-pronged test set forth in Farmer v. Brennan.”
Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016); see Farmer, 511 U.S. 825, 832 (1994).
First, “Farmer’s objective prong requires plaintiffs to demonstrate that ‘the deprivation alleged
[was], objectively, sufficiently serious.’” Scinto, 841 F.3d at 225. In order to be sufficiently
serious, the deprivation must pose “a serious or significant physical or emotional injury resulting
from the challenged conditions,” or “a substantial risk of such serious harm resulting from ...
exposure to the challenged conditions.” De’lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)
(internal quotation marks and citation omitted).
As applied to prisoners, this constitutional guarantee encompasses a right to medical care
for serious medical needs, including psychological needs. See Estelle v. Gamble, 429 U.S. 97,
103-04 (1976). To state a case of deliberate indifference to a serious medical need, a plaintiff must

5
The Court takes judicial notice of this portion of NCDPS’s Policy and Procedures as a matter of public
record. See Fed. R. Ev. 201.

29

show that he had serious medical needs and that the defendant acted with deliberate indifference
to those needs. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (citing
Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)). A “serious medical need” is “one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Iko, 535 F.3d at 241 (internal
quotation marks omitted). To constitute deliberate indifferent to a serious medical need, “the
treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive to shock
the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851
(4th Cir. 1990), overruled on other grounds by Farmer, 511 U.S. at 825. However, mere negligence
or malpractice does not violate the Eighth Amendment. Miltier, 896 F.2d at 852. Further, “mere
‘[d]isagreements between an inmate and a physician over the inmate’s proper medical care’ are
not actionable absent exceptional circumstances.” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir.
2016) (quoting Wright v. Collins, 766 F.2d 841, 840 (4th Cir. 1985)).
(5)

Sovereign Immunity
The Eleventh Amendment bars suits directly against a state or its agencies, unless the state

has waived its immunity or Congress has exercised its power under § 5 of the Fourteenth
Amendment to override that immunity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66
(1989). Congress has not imposed § 1983 liability upon states, and the state of North Carolina has
done nothing to waive its immunity. Bright v. McClure, 865 F.2d 623, 626 (4th Cir. 1989) (citing
McConnell v. Adams, 829 F.2d 1319, 1328 (4th Cir. 1987)).
“[A]n official capacity suit is, in all respects other than name, to be treated as a suit against
the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, a lawsuit against an officer
in his official capacity is, in substance, a claim against the governmental entity and should be
30

subject to the same analysis. See Almone v. City of Long Beach, 478 F.3d 100, 106 (2d Cir. 2007);
see Hutto v. S.C. Retirement Sys., 773 F.3d 536, 549 (4th Cir. 2014) (State officials sued in their
official capacities for retrospective money damages have the same sovereign immunity accorded
to the State).
(6)

Qualified Immunity
The doctrine of qualified immunity protects government officials “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Qualified immunity “balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). The existence of qualified immunity “generally turns on the
‘objective reasonableness’ of the actions” without regard to the knowledge or subjective intent of
the particular official. Am. Civil Libs. Union of Md., Inc. v. Wicomico County, Md., 999 F.2d
780, 784 (4th Cir. 1993) (quoting Anderson v. Creighton, 483 U.S. 635, 639, 641 (1987)) (internal
citations omitted).
In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court mandated a two-step sequence
for resolving government officials’ qualified immunity claims by determining whether: (1) the
facts that a plaintiff has alleged or shown make out a violation of a constitutional right; and (2) the
right at issue was “clearly established” at the time of defendant’s alleged misconduct. While the
sequence of the steps set forth in Saucier is “often appropriate,” it is not mandatory. Pearson, 555
U.S. at 236. Judges are permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the circumstances
31

in the particular case at hand. Id.
To overcome the qualified immunity defense at the summary judgment stage, the plaintiff
must have shown facts that make out a violation of a constitutional right, and the right at issue
must have been “clearly established” at the time of the defendant’s alleged misconduct. Thompson
v. Commonweath of Va., 878 F.3d 89, 97 (4th Cir. 2017) (citing Pearson, 555 U.S. at 232). The
analysis takes place against the backdrop of two dueling interests: “the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 555
U.S. at 231.
To find a right is clearly established does not mean that “the exact conduct at issue [must]
have been held unlawful for the law governing an officer’s actions to be clearly established.”
Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001). Rather, the court’s analysis must take into
consideration “not only already specifically adjudicated rights, but those manifestly included
within more general applications of the core constitutional principle invoked.” Id. at 362-63
(internal quotation omitted). The right at issue is “clearly established” for qualified immunity
purposes if:
[t]he contours of the right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right. That is not to say that an official
action is protected by qualified immunity unless the very action in question has
previously been held unlawful, but it is to say that in light of pre-existing law the
unlawfulness must be apparent.
Anderson, 483 U.S. at 640 (citation omitted).
To determine if the right in question was clearly established, the court first looks to cases
from the Supreme Court, the Fourth Circuit, or the highest court of the state in which the action
arose. Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004). In the absence of “directly
32

on-point binding authority,” courts may also consider whether “the right was clearly established
based on general constitutional principles or a consensus of persuasive authority.” Booker v. South
Carolina Dep’t of Corr., 855 F.3d 533, 543 (4th Cir. 2017); Owens, 372 F.3d at 279 (“the absence
of controlling authority holding identical conduct unlawful does not guarantee qualified
immunity.”). Ordinarily, the unlawfulness of government conduct must be apparent in light of preexisting law. White v. Pauly, 137 S.Ct. 548, 442 (2017). However, a “general constitutional rule
… may apply with obvious clarity ... even though the very action in question has not previously
been held unlawful. Hope v. Pelzer, 536 U.S. 730, 741 (2002) (citing United States v. Lanier, 520
U.S. 259, 271 (1997)). Therefore, “officials can still be on notice that their conduct violates
established law even in novel factual circumstances.” Id. at 741.
(7)

Punitive Damages
A jury may be permitted to assess punitive damages in a § 1983 action when the

defendant’s conduct is shown to be “motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally protected rights of others” Smith v. Wade, 461
U.S. 30, 51 (1983).
III.
(1)

DISCUSSION

Motions to Dismiss
(A)

Defendant Jones (Doc. No. 49)

The allegations against Defendant Jones stem from one interaction with Plaintiff on May
30, 2018 at Alexander C.I. with regards to removing latex allergy restrictions from his medical
“490” card. Defendant Jones argues that the claims against him should be dismissed because
Plaintiff failed to exhaust the available administrative remedies before bringing this action against
him.
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Plaintiff argues that he properly exhausted the available administrative remedies with
regards to his claims against Defendant Jones through Grievance Number 07438, with Step One
being received on May 31, 2018, Step Two being received on May 31, 2018, and Step Three being
received on June 26, 2018.
Plaintiff’s allegations demonstrate lack of exhaustion of the claims against Defendant
Jones. The PLRA requires that exhaustion must take place before the commencement of the civil
action in order to further the administration of justice. Porter, 534 U.S. at 524. Plaintiff filed the
original Complaint on June 21, 2017 pursuant to the prisoner mailbox rule and he filed the
Amended Complaint, which included Dr. Jones as a Defendant, on June 26, 2018. (Doc. Nos. 1,
14). Plaintiff admits that the Step 3 grievance was not received until June 26, 2018, which was
almost a year after this action was commenced on June 21, 2017. Plaintiff has therefore failed to
satisfy PLRA’s exhaustion requirement. See, e.g., Hardin v. Lane, 2016 WL 6156186 (W.D.N.C.
Oct. 21, 2016).
Defendant Jones’ Motion to Dismiss will be granted, and this case will be dismissed
without prejudice as to Defendant Jones.
(B)

Defendant Sobel (Doc. No. 71)

Plaintiff alleges that Defendant Sobel misused his power and judgment by touching
Plaintiff’s stomach area while wearing latex gloves, while knowing that Plaintiff had a severe
allergy to latex. This incident allegedly occurred on November 24, 2016. (Doc. No. 14 at 20).
Defendant Sobel argues that the claims against him should be dismissed because Plaintiff failed to
exhaust the available administrative remedies, failed to state a claim, and failed to comply with
Rule 9(j) of the North Carolina Rules of Civil Procedure.
Defendant Sobel argues that Plaintiff failed to exhaust his administrative remedies by
34

completing the administrative remedy procedure on the claims against him. Plaintiff completed
three grievances before filing this lawsuit, Grievance Numbers 00325, 00014, and 03446. None of
these exhausted grievances involve Plaintiff’s claims against Defendant Sobel. For instance,
Grievance Numbers 00325 and 00014 involve incidents at Avery-Mitchell C.I. whereas Defendant
Sobel worked at Albemarle C.I. The one exhausted grievance addressing incidents at Albemarle
C.I., Grievance Number 03446, addresses his housing unit assignment and lack of accommodation
for his injured feet and wheelchair. Plaintiff has therefore failed to satisfy PLRA’s exhaustion
requirement. See, e.g., Hardin, 2016 WL 6156186.
To the extent that the Amended Complaint suggests that Plaintiff was attempting to proceed
on a medical malpractice or negligence theory against Defendant Sobel, it appears that any such
claim has been abandoned. Defendant Sobel argues in the Motion for Summary Judgment that any
such claim should be dismissed because Plaintiff failed to comply with North Carolina Rule 9(j).
in response, Plaintiff argues that he is asserting a deliberate indifference claim, not a claim of
medical malpractice so Rule 9(j) does not apply. (Doc. No. 79 at 14). Any medical
malpractice/negligence claim is therefore deemed abandoned and, even if it was not abandoned, it
would be subject to dismissal because Plaintiff does not refute Defendant Sobel’s allegation that
he failed to comply with Rule 9(j).
Defendant Sobel’s Motion to Dismiss will be granted, and this case will be dismissed
without prejudice as to Defendant Sobel.
(2)

Motion for Summary Judgment (Doc. No. 64)
Plaintiff alleges that Defendant D’Amico was deliberately indifferent to a serious medical

need with regards to his treatment of Plaintiff’s latex allergy. In his Response to the Motion for
Summary Judgment, he specifically complains that Defendant D’Amico conducted a painful latex
35

allergy test that he was not qualified to perform and discontinued medication that had been
prescribed by Dr. Umesi and P.A. Hendricks without Plaintiff’s knowledge.
The medical records and Defendant D’Amico’s affidavit reveal that Defendant D’Amico
actively monitored and treated Plaintiff’s medical complaints, submitted several UR Requests on
Plaintiff’s behalf including urgent requests, obtained non-latex shower shoes for Plaintiff, and
referred Plaintiff to a dermatologist despite negative test results for a latex allergy. The medical
records reveal that Defendant D’Amico persistently and conscientiously followed Plaintiff’s care.
With regards to the patch test, Defendant D’Amico states in his affidavit that he is qualified to
order such a test, that he ordered Plaintiff to be monitored for the first 30 minutes and instructed
that Plaintiff discontinue the test if he experienced distress, and conducted the test in order to
overcome the UR’s denial of non-latex materials due to a prior negative test result. Defendant
D’Amico’s affidavit and the medical records overcome Plaintiff’s conclusory and unsupported
allegations that D’Amico was deliberately indifferent to his care, purposefully subjected him to
the patch test in order to cause him pain, was unqualified to conduct the test, and was otherwise
indifferent to his alleged latex allergy. With regards to the medication that Dr. Umesi and PA
Hendricks had prescribed, the medical records reveal that the medication was discontinued the
same day that two other medications were added and the UR approved Defendant D’Amico’s
request that Plaintiff see a dermatologist. See (Doc. No. 65-8 at 2-4). Plaintiff has failed to
demonstrate the existence of any genuine dispute of material fact regarding whether Defendant
D’Amico was deliberately indifferent to his latex allergy or caused Plaintiff any pain or harm
through his acts or omissions. Plaintiff’s mere disagreement with the course of treatment he
received from Defendant D’Amico fails to support a deliberate indifference claim. Scinto, 841
F.3d at 225 (citation omitted). Therefore, Defendant D’Amico’s Motion for Summary Judgment
36

will be granted on Plaintiff’s § 1983 deliberate indifference claim.
Plaintiff’s claims for damages against Defendant D’Amico under § 1983 in his official
capacity are equivalent to suits against the State and are barred by the Eleventh Amendment. See
generally Will, 491 U.S. at 66; Graham, 473 U.S. at 166; see, e.g., Hutto, 773 F.3d at 549.
Therefore, no damages are available on Plaintiff’s § 1983 claims against Defendant D’Amico for
damages in his official capacity.
Defendant D’Amico argues that he is entitled to qualified immunity because his actions
with regards to Plaintiff’s care were reasonable and he did not violate any of Plaintiff’s clearly
established rights. Plaintiff has failed to establish that a constitutional violation occurred and
Defendant D’Amico has submitted uncontroverted evidence demonstrating that his conduct was
reasonable. Defendant D’Amico had no reason to know that he was violating any of Plaintiff’s
clearly established rights through his actions or inactions. Defendant D’Amico is therefore entitled
to qualified immunity.
To the extent that the Amended Complaint suggests that Plaintiff was attempting to proceed
on a medical malpractice or negligence theory against Defendant D’Amico, it appears that any
such claim has been abandoned. Defendant D’Amico argues in the Motion for Summary Judgment
that any such claim should be dismissed because Plaintiff failed to comply with North Carolina
Rule 9(j). In response, Plaintiff argues that Rule 9(j) does not apply to this Eighth Amendment
claims of deliberate indifference. (Doc. No. 82 at 6). Any medical malpractice/negligence claim is
therefore deemed abandoned and, even if it was not abandoned, it would be subject to dismissal
because Plaintiff does not refute Defendant D’Amico’s allegation that Plaintiff failed to comply
with Rule 9(j).
Plaintiff’s allegations do not support an award of punitive damages against Defendant
37

D’Amico on his § 1983 claims. Aside from his own conclusory, unsupported and unverified
allegations, Plaintiff has presented no evidence to support a finding that Defendant D’Amico acted
with malice or with willful intent to deprive him of his constitutional rights. Therefore, punitive
damages are not available.
For the foregoing reasons, Defendant D’Amico’s Motion for Summary Judgment will be
granted.
IV.
(1)

PLAINTIFF’S MOTIONS

Motion for Preliminary Injunction
Plaintiff has filed a “Letter of Declaration,” (Doc. No. 42), that was docketed as a Motion

for Preliminary Injunction. Plaintiff asks the Court to direct Defendants to immediately stop using
latex gloves at the facility and issue Plaintiff cloth mattresses and pillows “as once prescribed by
a physician,” to protect his health and life from the imminent danger of irreparable harm. (Doc.
No. 42 at 2).
The Avery C.I. Defendants (James Watson, Chad Clark, Phillip Bailey, Landon Porshia,
Robert Pittman, Mark R. Geouge, Nicholas R. Hensley) and the Alexander C.I. Defendants
(Benjamin Anderson, Ken Beaver, Thomas Bell, Pamela Chapman, Josh L. Crisp, William Glick
III, Stephanie Hall, Sheana Litaker, Jason Penland, Isaac Quintero, Michael W. Swink, Bobby
Tate, Michael D. Thompson, and Dean C. Walsh), have filed a Response in Opposition to
Plaintiff’s Motion for Preliminary Injunction. (Doc. No. 47). They argue that Plaintiff is presently
housed at Johnston C.I. so an injunction against any of the responding Defendants would not be
effective to enjoin any person currently performing custodial duties with Plaintiff. The Facility
Administrator at Johnston C.I. where Plaintiff currently resides, Mr. Roderick Watson, is not a
defendant in this case and the Court does not currently have personal jurisdiction to enjoin him or
38

anyone else at Johnston C.I. who are not defendants in this case.
Even if the Court had authority to enter a temporary restraining order or preliminary
injunction, this Motion is not substantially different from Plaintiff’s first motion for injunctive
relief and will be denied for the same reasons. See (Doc. No. 32).
(2)

Motion to Compel Discovery
Plaintiff has filed a “Summons,” post-marked April 4, 2019, and is docketed as a Motion

to Compel. (Doc. No. 86). The document is entitled “Notice of Declaration by Witnesses” and
refers to Gerald Ebert and Dennis Holland, both of whom work at the Johnston C.I. in Johnston
County, North Carolina, and are not parties to this case. (Id.). Plaintiff asks that Ebert and Dennis
provide written declarations in reference to Plaintiff’s “severe latex allergy” within 20 days after
service of the “Summons.” (Id.).
The Avery C.I. and Alexander C.I. Defendants have filed a Response in Opposition,
arguing that this document is not an appropriate discovery request pursuant to Rule 26, 30, 31, 33,
34 or 45 of the Federal Rules of Civil Procedure and ask that the Court deny any relief or,
alternatively, issue a protective order relieving these third parties from the responsibility to respond
to the document. (Doc. No. 88).
District courts enjoy “considerable discretion in overseeing discovery….” Kolon Indus.
Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 172, 178 (4th Cir. 2014). All civil discovery,
whether sought from parties or nonparties, is limited in scope by Rule 26 in two fundamental ways.
First, the matter sought must be “relevant to any party’s claim or defense,” and second, discovery
must be “proportional to the needs of the case….” Fed. R. Civ. P. 26(b)(1). Proportionality requires
courts to consider, among other things, “whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Id. This relieves parties from the burden of taking unreasonable steps
39

to ferret out every relevant document. When discovery is sought from nonparties, however, its
scope must be limited even more. Va. Dep’t of Corr. v. Jordan, 921 F.3d 180, 184 (4th Cir. 2019).
Nonparties are “strangers” to the litigation, and since they have “no dog in [the] fight,” they have
“a different set of expectations” from the parties themselves. Cusumano v. Microsoft Corp., 162
F.3d 708, 717 (1st Cir. 1998).
Plaintiff’s request for two non-parties to submit written declarations about his alleged latex
allergy where those individuals do not work at the institutions in question and have no apparent
involvement in the instant case, exceeds the bounds of proper discovery. The request is neither
relevant to this case or proportional to the needs of the case. Therefore, Plaintiff’s “Summons” is
construed as a Motion to Compel Discovery from third parties and will be denied.
(3)

Motion to Amend
On February 4, 2019, Plaintiff filed a Motion seeking to add the following defendants to

the Amended Complaint: Facility Administrator Roderick Watson, Assistant Superintendent of
Programs and Supervisory of the Medical Department Christopher Batten, Sergeant Smith,
Sergeant Hill, Nurse Supervisor Lisa Hallman, Officer Jones, Inmate Grievance Resolution Board
Member Faustina F. Brown, Grievance Processor/Administrator Juli M. Sharek. (Doc. No. 70).
A plaintiff may amend the complaint once as a matter of course within 21 days after serving
the complaint, or within 21 days after service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), which is earlier. Fed. R. Civ. P. 15(a)(1). A plaintiff may
subsequently amend with permission from the court which “shall be freely granted when justice
so requires.” Fed. R. Civ. P. 15(a)(2). The Fourth Circuit “ha[s] interpreted Rule 15(a) to provide
that ‘leave to amend a pleading should be denied only when the amendment would be prejudicial
to the opposing party, there has been bad faith on the part of the moving party, or the amendment
40

would have been futile.’” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc) (quoting
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).
Plaintiff fails to attach a proposed Second Amended Complaint to his Motion and
piecemeal amendment will not be permitted. See (Doc. No. 11 at 19) (informing Plaintiff that
“[a]ny Amended Complaint will supersede the original Complaint….”).
Even if Plaintiff had filed a proposed Second Amended Complaint, it is unclear whether
such amended would be permitted. The Court cannot determine at this time whether the claims
against the additional Defendants are part of the same transaction or occurrence as the operative
Amended Complaint, whether justice requires such an amendment, whether prejudice would
ensue, or whether amendment would be futile. See generally Fed. R. Civ. P. 15(a); Fed. R. Civ. P.
20. For all the foregoing reasons, Plaintiff’s Motion to Amend will be denied.
(4)

Motions for the Appointment of Counsel
Plaintiff has filed Motions asking the Court to appoint counsel to assist him with this case.

(Doc. Nos. 76, 93). In support of his Motion, Plaintiff states that he is indigent and is proceeding
in forma pauperis, that North Carolina Prisoner Legal Services is appointed to assist him with
discovery in a similar case, his imprisonment will greatly limit his ability to litigate, review, and
receive documents needed for discovery, the issues in the case are complex and will require
significant research and preparation including depositions and eyewitness examinations, applying
the rules of evidence, and making opening statements that are beyond Plaintiff’s abilities, Plaintiff
has limited access to a law library, copies of documents, and knowledge of the law, NCPLS is
currently in possession of documents and/or influential materials to be used for discovery, and a
trial will likely involve conflicting testimony and cross-examination that counsel would be better
able to address.
41

There is no absolute right to the appointment of counsel in civil actions such as this one.
Therefore, a plaintiff must present “exceptional circumstances” in order to require the Court to
seek the assistance of a private attorney for a plaintiff who is unable to afford counsel. Miller v.
Simmons, 814 F.2d 962, 966 (4th Cir. 1987).
The record reflects that Plaintiff has been able to adequately represent himself in these
proceedings. This case does not present exceptional circumstances that justify appointment of
counsel. Therefore, Plaintiff’s motion seeking the appointment of counsel will be denied.
V.

CONCLUSION

In sum, for the reasons stated herein, Defendants Jones and Sobel’s Motions to Dismiss are
granted, Defendant D’Amico’s Motion for Summary Judgment is granted, and Plaintiff’s pending
motions are denied.
IT IS, THEREFORE, ORDERED that:
1. Defendant William Jones’ Motion to Dismiss, (Doc. No. 49), is GRANTED.
2. Defendant Gary Sobel’s Motion to Dismiss, (Doc. No. 71), is GRANTED.
3. Defendant Keith D’Amico’s Motion for Summary Judgment, (Doc. No. 64), is
GRANTED.
4. Plaintiff’s “Letter of Declaration,” (Doc. No. 42), is construed as a Motion for
Preliminary Injunction and is DENIED.
5. Plaintiff’s “Summons,” (Doc. No. 86), is construed as a Motion to Compel Discovery
and is DENIED.
6. Plaintiff’s Motion to Amend Complaint Adding Defendants, (Doc. No. 70), is
DENIED.
7. Plaintiff’s Motions for the Appointment of Counsel, (Doc. Nos. 76, 93), are DENIED.
42

8. Plaintiff’s Motion to Compel Discovery, (Doc. No. 86), is DENIED.
9. The Clerk of Court is instructed to terminate this action as to Defendants Jones, Sobel,
and D’Amico.

Signed: June 6, 2019

43